In the Fall of 1996, Plaintiff was hired by Skidmore in a
tenure track teaching position in the Defendant's Department of
Business ("DOB"). Girma, who holds a Ph.D. in finance, taught
courses at Skidmore in investment, finance, and introduction to
business. Girma's initial contract was for three years, ending
after the Spring of 1999 semester.

Skidmore has an established procedure whereby tenure track
professors are evaluated to determine whether the College will
extend an offer for a second three-year contract (referred to by
the parties as "reappointment"). The evaluation procedure allows
the faculty of the department in which the candidate teaches,
during the candidate's second year, to submit comments to the
department's Personnel Committee on whether the candidate should
be considered for reappointment the following year (the third
year). In this case, it was the consensus of the DOB faculty
that Girma should stand for review in his third year (the Fall
of 1998). These faculty comments were very favorable of Girma's
chances for reappointment.

The reappointment procedure allows each department's personnel
committee to conduct this evaluation using the stated criteria
(discussed more fully below). The personnel committee then
reports its recommendation to the department chairperson,
stating its reasons therefore, and providing to the chairperson
the materials upon which the committee based its recommendation.
The department chairperson considers the same material as the
personnel committee, formulates his/her own recommendation, and
then forwards both recommendations (and any attendant materials)
to the Dean of Faculty. The Dean of Faculty, in turn, reviews
the material and makes his/her own recommendation to the College
President who makes the final decision whether to grant
reappointment. Here, the DOB Personnel Committee consisted of
Associate Professors Betty V. Balevic, Martin J. Canavan, and
Mary E. Correa. Professor Roy Rotheim was the DOB Chair, Susan
Bender was Acting Dean of Faculty, and Phyllis Roth was Interim
President.

In the Fall of 1998, the Department of Business considered the
reappointment of three candidates: Girma, Eric Lewis, and James
Kennelly. At least one other professor from the department, Gary
McClure, was considered for tenure (which is determined by a
interdepartmental tenure committee with faculty comment taken
from the DOB faculty and chairperson). Kennelly is approximately
the same age as Plaintiff. McClure was in his mid-60s in 1998.
Lewis, Kennelly, and McClure are Caucasian.

Acting Dean Bender concurred with the Personnel Committee's
and the Chairperson's recommendations, and, also relying
strongly on Girma's poor teaching evaluations, recommended
against reappointment. The College's Interim President accepted
these recommendations and, on February 26, 1999, Girma was
notified that his candidacy for a second three-year term was
unsuccessful and that his employment would terminate after the
1999-2000 academic year. Professors Kennelly and Lewis were
reappointed. Professor McClure was granted tenure. On August 12,
1999, Dr. Girma submitted his letter of resignation, effective
September 1, 1999. This litigation ensued thereafter.

II. DISCUSSION

a. Summary Judgement

It is well settled that on a motion for summary judgment, the
Court must construe the evidence in the light most favorable to
the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581,
593 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct.
1832, 146 L.Ed.2d 776 (2000), and may grant summary judgment
only where "there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law." FED. R. Civ. P. 56(c).

"Even where facts are disputed, in order to defeat summary
judgment, the nonmoving party must offer enough evidence to
enable a reasonable jury to return a verdict in its favor."
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, (2d
Cir. 2001). The "non-moving party may not rely on conclusory
allegations or unsubstantiated speculation." Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974). Consequently, summary judgment, even in a
discrimination case, is granted "[w]here the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986); see Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (the
Supreme Court "reiterated that trial courts should not `treat
discrimination differently from other ultimate questions of
fact.'") (quoting St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

With this standard in mind, the Court turns to the arguments
raised by the parties.

b. "Single Motive" or "Dual Motive" case?

Defendant argues, as discussed below, that Plaintiff cannot
establish a prima facie case of race, national origin, or age
discrimination under the shifting burden standard set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), and its progeny, and, that even if he
can, he cannot establish that the employer's legitimate
non-discriminatory reasons for the employment decision are a
pre-text for discrimination. Plaintiff responds by arguing that
this, is not a case to be analyzed under McDonnell Douglas
Corp. v. Green, but rather a dual motive case to be analyzed
under the standard set forth by Price Waterhouse v. Hopkins,
490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)
(plurality opinion), and its progeny. See Rose v. NYC Bd. of
Educ., 257 F.3d 156, 161 (2d Cir. 2001) (the Price Waterhouse
framework applies to cases under the ADEA also). Plaintiff
argues that under the latter standard, the burden is on the
defendant to establish that it would have taken the same action
in the absence of discriminatory motives.

A dual motive case generally arises when policy documents or
evidence of statements or actions by decision makers exist that
may be viewed as directly reflecting the alleged discriminatory
attitude, i.e., a "smoking gun." Id. at 446 (internal
quotations and citations omitted). Here, Plaintiff asserts that
this direct evidence of discrimination by decision makers arises
from four sets of circumstances.

The first set of circumstances is a contention that during the
course of three conversations which Plaintiff had with Professor
Rotheim, Rotheim inquired about the ages of Girma and his wife.
Girma provides no further details regarding the content of these
conversations other than to conclude that he (Girma) was "struck
by the fact that . . . Professor Rotheim seemed to want to know
not only my age, but the age of my spouse." Rotheim indicates in
his reply affidavit that the only conceivable situation that he
might have asked Girma for his and his wife's ages was in the
context of a conversation, initiated by Girma, about a personal
problem which Girma and his wife were experiencing in starting a
family. Rotheim asserts, without contradiction, that "to the
extent that such an inquiry could have occurred, it was done as
a sympathetic friend who was trying to lend support and counsel.
I certainly never made any such inquiry in the content of
determining whether Professor Girma should continue to be a
member of the Skidmore faculty." Rotheim Reply Aff. ¶ 7.

Drawing all inferences in Plaintiffs favor, this statement is
hardly an indication of discriminatory motive related to an
employment decision let alone a "smoking gun." There is no
connection between the statement and any employment action taken
by Rotheim or even that Rotheim held any animus against workers
within a protected classification.

The second set of circumstances are statements attributed to
Rotheim by Jeannette Oppedisano, a former professor at Skidmore,
who asserts that:

in a faculty meeting on September 10, 1997, Professor
Rotheim stated that an applicant for a faculty
position was too old (he was 45). On several
occasions in the Fall of 1997, he commented about the
fact that Professor Gary McClure, who was ultimately
granted tenure, was '64' (he was actually 62).

Oppedisano Aff. ¶ 18.

Prof. Oppedisano goes on to conclude that, in her opinion,
Rotheim "had a problem with older people" and a "preoccupation
with the age of his professional colleagues." Id. at ¶¶ 19, 20.
Prof. Rotheim denies making the statement regarding the
forty-five year old candidate and indicates that at the time
this individual was being considered for employment he and
several other under-forty candidates made presentations to the
department. None of the candidates were hired, by unanimous
determination of the department faculty, because of the poor
quality of each candidate's presentation. With regard to
Professor McClure, Prof. Rotheim indicates that he did at one
time comment positively on McClure's age, indicating that he
thought it was wonderful that McClure
entered into a second career in academia. Rotheim notes also
that he supported McClure's quest for tenure which was granted
the same year that Girma's reappointment was declined.

Even assuming this occurred, it indicates only that race
played a role in Girma's initial hiring, not in the decision
whether to offer him a second three-year contract. While these
circumstances may have some value in developing a circumstantial
case of discrimination (as may the other circumstances mentioned
here), they are hardly a smoking gun.

Finally, Plaintiff asserts that during his second year with
the College, Prof. Rotheim asked to speak to him regarding his
poor student evaluations and the impact that such evaluations
would have on reappointment. Apparently, Rotheim met with Prof.
Girma at the student cafeteria and the two spoke about Girma's
poor reception by the student body while the two had coffee.
Plaintiff asserts, in wholly conclusory fashion, that he
believes Rotheim intentionally "breached the confidentiality of
personnel evaluations" in the student cafeteria "to provoke a
reaction from me in a public forum." Prof. Girma further asserts
that "I believe that Professor Rotheim would not have similarly
embarrassed Caucasian professors."

To establish a prima facie case of intentional
discrimination, Plaintiff must establish four elements. These
are: (1) that he is a member of a protected class; (2) that he
is qualified to hold the position; (3) that he suffered an
adverse employment action; and (4) that the adverse employment
action took place under circumstances that give rise to an
inference of unlawful discrimination. Stern v. Trustees of
Columbia University, 131 F.3d 305, 311-12 (2d Cir. 1997)
(citing Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. 1089);
Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91
(2d Cir. 2001) (same for ADEA claims).

The burden of proof that a plaintiff must meet at the prima
facie stage in order to survive summary judgment is "minimal"
or de minimis. St. Mary's, 113 S.Ct. at 2746-47; Fisher III,
114 F.3d at 1336. The Second Circuit has indicated that in
determining whether a plaintiff has established a prima facie
case, a court should consider only the plaintiffs evidence.
Graham v. Long Island Rail Road, 230 F.3d 34, 42 (2d Cir.
2000). Nonetheless, a plaintiff must proffer some admissible
evidence of each of the four elements, including evidence from
which a reasonable trier of fact could infer discriminatory
motive. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d
Cir. 1995).

1). Member of a protected class

Defendant does not debate that Plaintiff is within the
protected classifications of race, national origin, and age.
Therefore, the Court assumes, without deciding, that Plaintiff
satisfies this prong of the prima facie case on each claim.

2). Qualified to hold the position

Defendant asserts, however, that Plaintiff cannot satisfy the
second prong of the prima facie case on his claims because he
cannot demonstrate that he was qualified for reappointment. In
this regard, Defendant argues that the primary criterion for
reappointment is teaching qualification and, given the
objectively clear evidence of declining teaching performance by
Girma, he failed to meet the criteria for reappointment set by
the College.

This argument places too high a burden on Plaintiff at the
prima facie stage. While this same argument is relevant and
will be addressed with respect to whether Plaintiff can
establish that the employer's reason for the employment action
is a pretext for discrimination, at the prima facie stage a
plaintiff must show only that he "possesses the basic skills
necessary for performance of [the] job." Owens v. New York City
Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) (internal
quotation marks omitted). As the Circuit recently held:

Here, inasmuch as Plaintiff was at least minimally qualified
to perform the essential duties of the position and did so for
three years, he meets this requirement at this stage.

3). Adverse employment action

Further, there is no dispute that the failure to offer
Plaintiff a three-year extension contract was an adverse
employment action and therefore the Court assumes without
deciding that this prong is in Plaintiffs favor on each claim.

4). Adverse employment action took place under
circumstances that give rise to an inference of unlawful
discrimination.

Defendant also argues that Plaintiff cannot present facts to
satisfy the fourth prong of the prima facie case, that is,
that the adverse employment action took place under
circumstances that give rise to an inference of unlawful
discrimination. "A plaintiff may raise such an inference by
showing that the employer subjected him to disparate treatment,
that is, treated him less favorably than a similarly situated
employee outside his protected group." Graham, 230 F.3d at 39;
see Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d
Cir. 1999) (inference of discrimination arises when individual
of one race treated less favorably than those of another race
who are similarly situated). A plaintiff may also attempt to
establish a prima facie case of discrimination by presenting
evidence of various other indicia of discriminatory intent
including, but not limited to:

the employer's continuing, after discharging the
plaintiff, to seek applicants from persons of the
plaintiffs qualifications to fill that position; or
the employer's criticism of the plaintiffs
performance in ethnically degrading terms; or its
invidious comments about others in the employee's
protected group; or the more favorable treatment of
employees not in the protected group; or the sequence
of events leading to the plaintiffs discharge.

Because the plaintiff brings claims based upon theories of
discrimination on separate protected classifications, the Court
will analyze each separately.

a. Age Discrimination

As discussed above, with regard to discrimination on the basis
of age, Plaintiff cites to the supposed statements of Professor
Rotheim: (a) inquiring of the Plaintiffs and Plaintiffs wife's
ages, (b) making a statement about the age of another
professor-candidate, and (c) making a statement about Professor
McClure's age. The Second Circuit has held that "stray remarks"
of a decision maker, without a more definite connection to the
employment decision, are insufficient to prove a claim of
employment discrimination. See Woroski v. Nashua Corp.,
31 F.3d 105, 109-110 (2d Cir. 1994). Here, there are questions
whether Rotheim was the decision maker and whether, in the
context of this case where there is evidence that Rotheim
supported the reappointment and tenure of other professors who
were within
this protected classification, a finder of fact could draw the
logical conclusion that an inference of age discrimination
exists. Bickerstaff, 196 F.3d at 448.*fn3 However, in
Graham, the Circuit held that the district court erred when it
considered the defendant's uncontradicted evidence in
determining whether the plaintiff had established a prima facie
case. Graham, 230 F.3d at 42 ("[S]ince the burden at this
stage . . . rests solely with on [plaintiff], it was premature
to consider [defendant's] evidence."). Therefore, these issues
will not be addressed in this part of the analysis.

Taken in the context of Plaintiff's proof only, the statements
about the 45-year old candidate and Professor McClure could
constitute "invidious comments about others in the employee's
protected group" as contemplated by Chambers v. TRM Copy
Centers Corp., 43 F.3d at 37. Therefore, and in light of the
minimal standard imposed upon the Plaintiff at this stage, the
Court finds that the Plaintiff has satisfied his burden of
demonstrating a prima facie case of age discrimination.

b. Race Discrimination

With regard to the issue of race*fn4 discrimination,
Plaintiff asserts that Skidmore has never had an African
American tenured professor and that, when combined with other
evidence of racial overtones at the College, he makes out a
prima facie case of race discrimination.

While Plaintiff was not being considered for tenure and while
the record is unclear whether a non-African American professor
with a reappointment profile similar to Girma's was ever
reappointed, it is clear from the parties' various submissions
that reappointment is considered as a necessary prerequisite to,
and a strong showing of support for, tenure. The logical
conclusion could be drawn by a trier of fact that if the
employer is intent on preventing African American's from being
considered for tenure, a denial of reappointment is a effective
preemptive means to avoid same. Thus, a question of fact exists
as to whether a "similarly situated" non-African American
professor was granted tenure, Graham, 230 F.3d at 39 ("Whether
two employees are similarly situated ordinarily presents a
question of fact for the jury."), and, therefore, whether
Skidmore treated Plaintiff less favorably than a similarly
situated employee outside his protected group. Although a thin
connection, it is sufficient on this prong of the prima facie
case which requires only a de minimis demonstration.

Plaintiff attempts to demonstrate improper pretext from two
perspectives. First, he argues that procedural irregularities
pervaded the review process thereby raising a question of fact
as to whether the stated reason was a pretext for
discrimination. Second, he seemingly challenges the validity of
the College's stated reliance on student evaluations.*fn6 The
Court will address each argument separately.

[C]ourts . . . should not substitute their judgment
for that of the college with respect to the
qualifications of faculty members for promotion and
tenure. Determinations about such matters as teaching
ability, research scholarship, and professional
stature are subjective, and unless they can be shown
to have been used as the mechanism to obscure
discrimination, they must be left for evaluation by
the professionals, particularly since they often
involve inquiry into aspects of arcane scholarship
beyond the competence of individual judges.

In that same footnote, the Circuit quoted Judge Calabresi's
observation in his concurring opinion in Fisher III that it is
"always pernicious" for a court to set standards for the
employer, and "[i]t is particularly pernicious in academic
contexts, where, second only to athletics, we all think that we
are better coaches than the coaches themselves." Fisher III,
114 F.3d at 1361 n. 13 (Calabresi, J., concurring in part and
dissenting in part).

As indicated further in Bickerstaff, this Court's "role is
narrowly limited to determining whether an illegitimate
discriminatory reason played a motivating role in the employment
decision." Bickerstaff at 456. The conclusion drawn by the
Plaintiff, that is, that he was qualified to hold the position
because the students did not know what was good for them and
therefore the College should not have focused on this criterion,
is insupportable in this context. Since the College chose to
rely upon student perception of teaching quality, no matter how
variant this perception is from that of the professors, absent a
demonstration of disparate application of this criterion it does
not create a genuine question of material fact as to whether the
use of the criterion is a pretext for discrimination. Despite
the fact that the Court must draw all reasonable inferences in
his favor, Plaintiff has offered nothing from which a reasonable
trier of fact could conclude, using the employer's criteria,
that he was qualified to continue holding the position
or that the criteria was not applied uniformly. Consequently,
there is no support for the position that the stated basis for
the College's determination was a pretext for discrimination.

As above set-forth, on the issue of age discrimination,
Plaintiff offers little more than his own subjective beliefs
that age played some role in the College's determination not to
reappoint him. However, this subjective belief is not supported
by any admissible evidence tying age to the employment decision
in issue. Plaintiff does not dispute that in the year that
Rotheim and the other professors determined not to support
Girma's application for re-appointment, Rotheim and the College
supported the reappointment of Prof. Kennelly, who is
approximately the same age as Plaintiff, and to grant tenure to
Gary McClure who was in his 60's.*fn7 While "the
impermissible bias of a single individual at any stage of the
promoting process may taint the ultimate employment decision,"
Bickerstaff, 196 F.3d at 450, Plaintiff has not supplied
evidence from which a reasonable finder of fact could conclude
that Rotheim or any of the other five decisions makers in the
reappointment process harbored any age-based animus.

Rotheim's age-related comments, taken as true, do not impact
Plaintiffs employment circumstances. The only comment regarding
Girma are the uncontradicted statements wherein Rotheim inquired
about Girma's and his wife's ages in the context of a
conversation which Plaintiff initiated and which had no
discriminatory overtones.

Girma's allegations of race discrimination are similarly based
upon mere conjecture and surmise, consisting only of his
feelings of being discriminated against. His allegation of
disparate treatment because Professor Rotheim met with him in
the school cafeteria is just such an example. While Girma
indicates that he does not feel that Rotheim would have met with
Caucasian professors under such circumstances, he provides no
evidence from which to conclude that others were treated
differently.

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